Alderton and Repatriation Commission
[2000] AATA 1066
•4 December 2000
CATCHWORDS – VETERANS' AFFAIRS – whether applicant's service amounts to qualifying service – whether applicant incurred danger from hostile forces of enemy when knocked unconscious while on guard duty in Army truck compound – whether Italian prisoners-of-war were hostile forces of the enemy at the time of the attack – decision affirmed.
Veterans' Entitlements Act 1986 – ss 5C, 7A, 119, 120
Repatriation Commission v Smith (1987) 74 ALR 537; (1987) 15 FCR 327; (1987) 12 ALD 798; (1987) 7 AAR 17
DECISION AND REASONS FOR DECISION [2000] AATA 1066
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q1999/159
VETERANS' APPEALS DIVISION )
Re EDWARD JAMES ALDERTON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Brigadier I R W Brumfield (Member)
Mr I R Way (Member)
Date: 4 December, 2000
Place: Brisbane
Decision:The Tribunal affirms the decision of a delegate of the respondent dated 10 September, 1998 and affirmed by the decision of another delegate dated 18 November, 1998.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 2 February, 1999, the applicant, Mr Edward James Alderton, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") dated 10 September, 1998 and affirmed by the decision of another delegate dated 18 November, 1998. The decision was that Mr Alderton does not have qualifying service within the meaning of s. 7A of the Veterans' Entitlements Act 1986 ("VE Act").
At the hearing, Mr Alderton represented himself and the Commission was represented by Mr Stoner who is an Advocate with the Department of Veterans' Affairs. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with Mr Alderton's statement, three bundles of documents produced by Mr Alderton, a statement from Mr Antonio Gollo dated 27 April, 2000, Mr Alderton's notes of the television documentary, Reluctant Enemies and a report by Professor John McCarthy dated 2 February, 2000. Mr Alderton gave evidence in support of his own case and Professor McCarthy gave evidence in support of that of the Commission.
THE ISSUE
The issue in this case is whether Mr Alderton has qualifying service within the meaning of s. 7A(1)(a)(i) of the VE Act. That issue raises four further issues. As there is no question that Mr Alderton rendered service during a period of hostilities as required by the definition of "qualifying service", those issues are whether, while serving with 3rd Motor Transport Training Depot at Bonegilla in or about October, 1944:
Mr Alderton "rendered service … in military operations";
any military operations were "against the enemy in an area" in which Mr Alderton rendered that service;
there were "hostile forces of the enemy"; and,
if so, whether Mr Alderton "incurred danger from hostile forces of the enemy in that area".
BACKGROUND
Mr Alderton is now 77 years of age. When he was 18 years of age, he enlisted in the Australian Army and commenced full-time duty on 6 January, 1942. The whole of his service until his discharge on 19 January, 1945 took place in Australia. On 21 August, 1998, Mr Alderton lodged an application to determine his qualifying service.
Both Mr Alderton and Professor McCarthy gave evidence regarding enemy prisoners of war ("POWs") held in Australia during World War II. Each referred to publications including The Italian Farming Soldiers – Prisoners of War in Australia 1941 – 1947 (Alan Fitzgerald, MUP, Melbourne, 1982) and Stalag Australia – German Prisoners of War in Australia (Barbara Winter, Angus & Robertson, Sydney, 1986). On the basis of their evidence we find that, in May, 1941, the Australian government agreed to accept POWs captured in the Middle East and two years later, in May, 1943, it agreed to accept Italian POWs from India. By the end of the war, a total of 25,720 POWs (1,637 Germans, 18,432 Italians and 5,637 Japanese) were in Australian custody. In addition, there were interned in Australia approximately 9,000 civilians who were regarded as having affiliations with hostile powers. From May, 1943, Italian POWs were employed as farm labourers. They were unguarded and paid for their labour.
Bonegilla is located near Albury-Wodonga. The two largest POW camps located near Bonegilla were No. 12 Camp at Cowra in New South Wales and No. 13 Camp at Murchison in Victoria. Camp No. 12 at Cowra was further away from Bonegilla but was the scene of the escape of 378 Japanese POWs on 5 August, 1944.
No. 13 Camp was the closer camp and was located approximately 170 kilometres from Albury-Wodonga. There were approximately 4,000 POWs at Murchison. Italian POWs at that camp were sent to rural properties, including those in the Albury-Wodonga area, to be farm labourers. They were sent without guards. German POWs were not permitted to work unsupervised and were only allowed outside the camp if on supervised and guarded work parties.
LEGISLATIVE FRAMEWORK
The expression "qualifying service" is defined in section 7A (s. 5C(1)). Only s. 7A(1)(a)(i) is relevant in this case and it provides:
"For the purposes of Part III and sections 85 and 118V, a person has rendered qualifying service:
(a)if the person has, as a member of the Defence Force:
(i)rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship"
In so far as it is relevant, the word "enemy" is defined to mean:
(a)in relation to World War 1 or World War 2 – the naval, military or air forces, or any part of the naval, military or air forces, of a State at war with the Crown during that war; and
(b)…
(c)persons assisting any of those forces." (s. 5C)
As Mr Alderton did not have operational service, we must be reasonably satisfied that he has qualifying service (s. 120(4)). As Beaumont J explained in Repatriation Commission v Smith (1987) 74 ALR 537, this means that we must ask ourselves:
"… whether on the facts of the case, … [we are] persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 354; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner 12 ALD 87. " (page 547)
THE EVIDENCE
The attack on or about 16 June, 1994
Mr Alderton
In his statement, Mr Alderton set out a detailed history of his service. In so far as they are relevant to his claim, the events he wrote about centre upon his time with 3rd Motor Transport Training Depot at Bonegilla where he was posted to complete a six week driver mechanic course. He arrived at Bonegilla on 5 June, 1944. The events that Mr Alderton recalled from that time were:
"… during this course it became increasingly apparent that there was repeated acts of sabotage on the Transport, one truck went over the side of the Mountain and was balancing against a tree, I volunteered to take a cable down to secure it, when this Vehicle was winched to the top and later examined it was found that the brakes had deliberately been tampered with, there was other incidents of tyres slashed on the inside walls, damage to Radiators and Engines. The Result of this was that it was decided to place an Offensive Special Guard on the Motor Pool, armed with Rifle and 10 rounds of live ammunition with instructions to engage and attempt to capture anyone entering the Motor Pool. Previous to this I had been sitting in a Café in Wodonga when I noticed a group of men harrasing (sic) a young Staff Care (sic) driver, who had parcels and was being prevented from entering his car, I excused myself, and although warned not to go out, I did so, a heated exchange took place before the (sic) decided to disperse, on my return to the Café I was told they were both Escaped Prisoners of War and Released Prisoners of War of Both Italian and German origin and they were causing damage to both Govt and Army Property, included in this group was one Soldier that I took particular notice of as I had recognised him from Bonegilla Camp. Although I did not particularly become alarmed at the time, I did report the full incident to a senior officer on my return to Camp. I was selected for Spec Offensive Guard Duty at the Motor Pool on or about 16.6.44, at approx 2300 HRS I noticed shadowy figures moving between Vehicles, I knew they were illegal Trespassers, and we were warned that we could confront Sabatures (sic), and it was our duty to engage and possibly apprehend same, so my decision was to creep close enough to render one unconscious then challenge the rest to surrender, as I crept closer I was surprised to definitely recognise one and possibly two of the men that I had confronted in Wodonga, I was more determined to capture one then, but as I moved forward I was savagely struck with an Iron Tyre lever from behind, had I not had a felt hat on as well as a thick Balaclava, I feel quite sure that I would have been killed when I was Struck I fell forward unconscious and gashed my forehead and smashed my nose on the running board of a truck, I layed there unconscious and bleeding untill (sic) found at the changing of the Guard, I was rushed into Albury Hospital and received stitches to both back and front of my head, I was drifting in and out of conscious condition but insisted I wanted to return to Camp, which I did, some time before morning; I was excused from Roll Call all the following day and remained lying down as I had alternative Dizzy spells and Vomiting and was disoreated (sic). The following morning I was up early as I wanted to be at the assembly centre before Parade was called, I was mad and only had one mission in mind that was to come into contact with the Soldier that had been seen with these Escapees in Wodonga, I was lucky he also turned out before Parade was called, I immediately challenged him to tell me the identity and where this renegade bunch that he was with in Wodonga could be found, he stated, 'I don't know what you are talking about, the belt over the head must have affected you', at that time the incident was low key untill (sic) I could be interviewed by Intelligence Officers, and not know outside our section, so I then knew that he already knew of the incident, I was not well and stated either tell me or I will belt it out of you, I think his reply was 'you can try', so I did, but was stopped by other Soldiers as the Parade was about to be called, I consider a few more minutes and I would have had the information I required. After Parade and Roll Call I was requested to see the Orderly Officer, when I explained my actions, no further action was taken, with the exception that I never ever saw that Soldier in camp after he was called up over the incident, and I never stopped looking for him. I was told to report to RAP regarding my swolen (sic) hand, I explained to them what had happened and they said they will just put down that you fell on you (sic) hand. The Following day I was interviewed by Army Intelegence (sic), and again some days later, I understand after my interview when I explained how I came to know and recognise them and had a face to face confrontation with them in Wodonga. They then went into Wodonga and questioned Julia and her Uncle at the Café, to try to find them. …" (Exhibit A, pages 2-3)
Mr Alderton then wrote of his attempts to find the men he had seen outside the café at Wodonga. His efforts were unsuccessful.
In his oral evidence, Mr Alderton said that the group at the café in Wodonga had been led by a German POW and included Italian POWs. Julia had pointed them out as released POWs at the time. The incident at the camp had occurred at about 2300 hours. He had been assigned to picket duty and was the only one on duty at the motor pool. Three men were rostered for picket duty each night and each had a four hour shift. Mr Alderton reported to a sergeant but he was in the operations room. He had seen the trespassers, of whom there had been 6 or 8, in silhouette as there had been a light behind them. He said that he recognised an "Italian fellow". That man had longish hair that was unusual in those days. The other man had lighter coloured hair. He heard neither of them speak. Mr Alderton said that he had seen them moving among the vehicles. He had "wanted one out of action" and it was then his plan to fire a shot to get help.
Escaped prisoners-of-war
Mr Alderton
Mr Alderton produced a number of documents relating to POWs. The documents were not produced in their entirety but we understand that he had obtained them from the Australian Archives.
The documents contain an extract from what was probably a Security Service Report related to alien control and was headed "Undesirable Concentration". It read:
"On the 20th June, 1942, 21 Italian aliens were interned from the Griffith area, where there is a concentration of approximately 8,000 enemy aliens and naturalised British subjects of enemy origin. Whilst they were detained in the Griffiths (sic) Police Station, one of their number gave the Fascist salute and adopted the position of leader of the group."
An entry preceding another dated 20 July, 1942 referred to four escaped POWs (one Italian and three Germans) from an Internment Camp in Victoria. A later entry referred to the sighting of a person answering the description of an escaped POW from a Victorian camp was seen travelling in a Sydney suburban train. Subsequent "exhaustive investigations" led to a conclusion that it was "considered improbable that the man seen by the two informants was identical with the escapee. … steps were taken to have special enquiries made at Griffith, where there is a large concentration of Italian nationals." (Exhibit C)
An extract from a report that Mr Alderton notes was dated 13 August, 1943 states that a check on naturalised British subjects released from internment for work with the Manpower authorities, had shown that a certain number are neither residing at their place of abode or at their given place of employment.
Another extract, noted by Mr Alderton as dated in 1944, referred to two German POWs who were missed. It was presumed that they went out with an Italian working party.
Professor McCarthy
Professor McCarthy holds a first class honours degree in history, a Master of Arts majoring in history and a PhD in political science. He has written five books on defence and foreign history and published numerous articles. He has lectured at the Duntroon Faculty of Military Studies and has taught extensively.
Professor McCarthy said that there was a very high probability that there were Italian POWs on work release in the Albury-Wodonga area in 1944. He has, however, not uncovered any evidence that there were escaped POWs in the area in 1944. While there were 41 Italian POWs still at large in Australia in 1948, all had escaped in 1946 and 1947.
Of the 378 Japanese POWs who escaped on 5 August, 1944, he wrote in his report, most were recaptured the next day close to Camp 12. All had been recaptured by 13 August, 1944. The last Japanese POW recaptured was found at the furthermost point from the camp; 32 kilometres. He was recaptured at Canowindra and so at a place further away from Bonegilla than is Cowra. No Italian POWs escaped with the Japanese POWs.
With regard to German POWs, Professor McCarthy said that it was most unlikely that there were any German escapees in the Albury-Wodonga area in October, 1944. Referring to Barbara Winter's book, Stalag Australia – German Prisoners of War in Australia, he said that their attempts to escape were frequent and, at times, successful. No German POW successfully evaded capture for more than three weeks. Referring to the War Diary for Camp 13 at Murchison from July to October, 1944, Professor McCarthy noted the following regarding escape attempts:
"For example, on 12 August 1944 it is recorded:
PWG [Prisoner of War German] 41656 PEXA awarded 14 days detention in that he did at Murchison on 11 August 1944 have in his possession a map of Victoria.
On 18 August, PWG Willi Karl Konrad was awarded 28 days detention after a Tilley lamp was found in his possession while on 6 September 1944 another German prisoner-of-war was awarded 7 days detention for possessing money. Three German prisoners-of-war escaped on 1 October 1944 and were recaptured in Melbourne a week later. On 19 October a German POW escaped from a road making party and on 31 October another German POW escaped. It might be noted there is no recorded instance of violence being offered by these escaped German prisoner-of-war to servicemen, civilians or to arresting officers." (Exhibit 2, pages 4-5)
Acts of sabotage
Mr Alderton
Mr Alderton said those engaged in sabotage were organised by two groups from Griffith. They moved from place to place. He said that they tried to blow up the Mildura weir and pushed gun powder into a stack of wood next to the Nicholas Point Pumping Station.
Mr Antonio Gollo
In his letter of 27 April, 2000, Mr Gollo said:
"… that sabotage had begun in Australia well before the advent of the arrival of Italian P.O.W. from the Middle East 'who added their own individual effort'. There was the burning of planes and buildings at the Broken Hill Aerodrome as far back as 1939 when four Germans were investigated and I believe one was charged with the offence. and sabotage continued even after the end of World War II.
There was some sabotage carried out mainly from 1942 through to 1945, the end of the war, as some strong minded Fascist members refused to consider defeat and had an inbuilt hatred of both the British and Australian Governments, even some of these men who remained in Australia after the war still carry the same hatred of the people who declared war on their home country and bombed their own people.
The year 1944 was mentioned in Professor McCarthy's report in which he states no evidence suggests there were escaped P.O.W. in the Albury area at that time. This statement could not be further from the truth. Not only was there escaped P.O.W. engaged in sabotage but they also had P.O.W. in their ranks who lied to gain their freedom to work on farms without surveillance. Some never even remained on their designated properties. Some sabotage carried out during 1944, that I can remember, was incendiary capsules placed in two railway trucks at Bonegilla Siding, wires cut in Bombers at Tocumwal Air Base, sabotage to both Bonegilla Army and Wagga Air Bases & Transport, sabotage to railways and communications and a failed attempt to burn the old Woden Bridge over the Murray River at Tocumwal which also carried the railway line. This line was in heavy use due to the congestion of the different rail gauges at Albury." (Exhibit D)
Mr Dominic Nortoli
In a statement, Mr Nortoli said that he worked on friends' farms in the Griffith area between 1941 and 1946. He continued:
"During that period I personally knew of many acts of sabotage to certain Government or Defence projects and factories supplying them, such as attempting to destroy old wooden railway bridge over the river at Tocumwal also damage to planes and cutting wires to landing lights whilst planes were in night flying exercises, damages to factory Wagga, damages to railway lines and signals etc. and serious attempts to disrail trains, raids on army and air force camps at Wagga and Bonegilla Army Camp and many others.
These were carried out by young Italian men, members of the youth Fascist Group, who had a hatred for both British and Australian Governments who had declared war on Italy their home country, and interned their fathers and relations.
They were led by a German escaped P/W and his two main lieutenants were Italian escaped P/W, also there was many escaped P/W and army deserters shifted at night from farm to farm, and hidden in the area." (Exhibit C, page 4)
Mr Nortoli went on to say that the group was only in danger of capture on two occasions: once at the base of the Hume Reservoir and once in the truck depot at Bonegilla.
Documentary reports
In a report attached to a letter dated 21 February, 1941, Major Roberts reported "… on a recent attempt at sabotage on the railway line from Wodonga to the Military Camp at Bonegilla in Victoria" (Exhibit C, page 16). An eight foot length of chain with links 2 inches by 5/8th inch had been wrapped twice around the rails and a chisel bar jammed under a sleeper with its shaft lying across one of the rails. It was regarded as a deliberate attempt to throw a train off the Kiewa Bridge.
A memorandum dated 15 June, 1941 from the Australian Military Forces – Eastern Command reported damage to a body gauge used in the testing of 3.7 shells at the shell making annex of a factory. The body gauge bore hammer marks and was out of adjustment. It was the view of the reporting officer that the damage was deliberate as it would not be put out of alignment if it were simply dropped several times. Gauges were, however, hammered on occasion prior to re-grinding. There was no suspicion as to who had been responsible for the damage. Enquiries made in relation to a previous incident had revealed that damage had been caused when a shell dropped on a gauge.
A memorandum dated 18 June, 1941 from the Police Headquarters in Sydney reported that enquiries were then being conducted into the sabotaging of a boring mill in the Ordnance Workshops at the Victoria Barracks. Several nails and the cap of an oil can had been placed in a gear box damaging several teeth of the gears.
Certain parts for use on the M.G. 2 Bren Gun Carrier were reported as being defective in a minute from the Australian Military Forces – Southern Command dated 8 July, 1941. Sabotage was suspected.
On 5 March, 1942, a person or persons tampered with a petrol driven pump used to augment the water supply at Singleton. The carburettor had been dismantled, filled with mud and reassembled, dirt placed in the cylinder and the timing gear tampered with.
On 25 March, 1942, a police station in North Sydney reported the deliberate cutting of a P.M.G cable in a manhole outside a gun operation room at Cremorne. A report dated 21 April, 1942 from the Police Intelligence Section referred to the damage of three cases of munitions by acid. There was a suspicion that it had been deliberately spilt.
Reference is made in a memorandum from the Deputy-Director of Security for Victoria to the Deputy-Director of Security in Sydney to an intercepted letter. The author of that letter referred to an attempt to overturn a troop train by the placement of things on the rails and a "bad smash" later in the journey. Investigations revealed that reference was made to a journey that began on 16 or 17 May, 1942 from Bonegilla for the Northern Territory. There were no records of any attempts to de-rail a train in Victoria.
In the documents provided by Mr Alderton, were copies of Security Service Reports for the weeks ending 27 June, 1942 and 4 July, 1942. References were made in those reports to subversive activities in those weeks.
An act of sabotage was reported as having been committed at the Australian Glass Company's cork factory between 24 and 28 July, 1942. A fire hose had been cut with a sharp instrument. As the cork factory was only part of the operations on the premises and other operations were engaged in full time defence projects, fire in the cork factory was considered to be highly dangerous.
An undated entry refers to the discovery of an incendiary capsule on a vessel that had caught fire on some previous occasion. The capsule was activated by heat and heat from the sun was sufficient.
Professor McCarthy
In his report, Professor McCarthy commented upon the reports to which we have referred:
"Attached to your file are several intelligence or police reports which raise the subject of acts of sabotage. One deals with an apparent attempt of sabotage on the railway line running from Wodonga to the Military Camp at Bonegilla. It must be noted, however, that this attempt took place in February 1941, (sic) This could not have been the work of escaped Italian prisoners-of-war as the first contingent of Italian prisoners-of-war did not arrive in Australia until May 1941. The suspected sabotage at Marbut Pty. Ltd at Brunswick, Victoria in July 1941 could hardly have been the work of escaped Italian prisoners-of-war. In July 1941 the relatively few Italian prisoners-of-war were located at Hay in New South Wales and it must be considered most unlikely that an escapee only recently arrived in Australia would travel to Brunswick, trespass on the premisses (sic) of an engineering company and carry out a skilled act of sabotage.
Other reports on your file pertain to matters in 1942 and 1943. Even if acts of sabotage were involved and this is far from proven, the Veteran was not in the Albury-Wodonga area at the time. It might be recalled that 1942 was the Australian period of crisis and Japanese invasion was considered a very real possibility. There was great fear of a 'Fifth Column' even before Japan entered the war but the events of 1942 heightened Australian fears of enemy aliens being involved in sabotage or in creating spy networks. Consequently there was intense pressure to intern those aliens who remained free. [See Margaret Bevege, Behind Barbed Wire-Internment in Australia during World War 11, (Queensland University Press, St. Lucia, 1993), Chapter 7)]. It might seem reasonable to argue that in such an atmosphere acts of sabotage were seen to exist where none really did exist.
This atmosphere had disappeared by 1944. The war had shifted away from Australian shores and the fear of invasion had long passed. No evidence has been seen which suggests acts of sabotage against Australian interests were undertaken in 1944 and particularly by Italian prisoners-of-war. There is no mention of any acts of sabotage being discovered in Frank Cain, The Australian Security Intelligence Organisation: An Unofficial History (Frank Cass, London, 1994) or in Desmond Ball & David Horner, Breaking the Codes-Australia's KGB network 1944-1950, (Allen & Unwin, Sydney, 1998.) Sabotage is not mentioned in Bill Bunbury, Rabbits & Spaghetti: Captives and Comrades-Australians, Italians and the War 1939-1945 (Fremantle Arts Centre Press, South Fremantle, 1995). Fear of sabotage is mentioned four times in Margaret Bevege, op, cit., but there is no mention of an actual act of sabotage. There is only one mention of sabotage in Alan Fitzgerald op, cit. It reads:
Although the war in Europe was nearly over, the Victorian State Electricity Commission as late as 26 April 1945 objected to the establishment of a Prisoner of War Control Centre at Alexandra on the grounds of possible sabotage!
Fitzgerald obviously considered such a proposition absurd, thus the exclamation mark." (Exhibit 2, pages 5-7)
Italy's participation in World War II
Mr Antonio Gollo
Mr Gollo said that there was a well organised group engaged in sabotage. Members were paid an allowance and classed themselves as "honourable soldiers in action behind lines". (Exhibit D, page 2) After the war between Australia and Italy ended, some members of the group continued in their efforts and passed information to the Japanese forces. Many objected to this course of action and, as a result, many of the groups broke up.
Professor McCarthy
Professor McCarthy said that Italy surrendered on 3 September, 1943 after Mussolini had been deposed and Marshal Badoglio had been installed. On 30 September, 1943, the allies formally recognised the new government's position as a "co-belligerent in the war against Germany". This was followed by the Italian government's declaring war on Germany on 13 October, 1943.
CONSIDERATION
As we have said, there is no question that Mr Alderton rendered service during a period of hostilities as required by the definition of "qualifying service". There are, however, many questions about whether Mr Alderton meets the other criteria specified in the definition. Rather than go through each of them, we will focus only on the last issue we identified i.e. whether Mr Alderton "incurred danger from hostile forces of the enemy in that area".
On the basis of the evidence of Mr Alderton, we are satisfied that he was attacked on or about the night of 16 June, 1944 while he was performing picket duty at the car pool at the 3rd Motor Transport Training Depot at Bonegilla. We have reached that conclusion even though there is no reference to it or to his injuries in his records. In doing so, we note the provision of s. 119(1)(b)(ii) of the VE Act that we must take into account any difficulties that lie in the way of ascertaining the existence of a fact including a deficiency in relevant official records.
On the same basis, we accept that Mr Alderton was attacked by 2 men from a group of 6 or 8 who were trespassing in the car pool and that he incurred danger in that attack. We accept also that Mr Alderton firmly believes that the men were part of an organised group of POWs in the area who were engaged in sabotage activities. This is not a matter of an omission from his service records and so s. 119(1)(b)(ii) is not relevant. We must have regard to the evidence.
When we do that, there is the evidence that there were various acts of sabotage in the region both before and during 1944. That is evidence given by Mr Alderton but it is supported by the evidence of Mr Gollo, Professor McCarthy and also the documentary evidence found by Mr Alderton at the Australian Archives. That documentary evidence does not extend into 1944 but we accept that the only reason it does not do so is that Mr Alderton examined only one box of records. There is, however, no evidence of the identity of the man or men who attacked Mr Alderton. He saw them first in silhouette but later recognised one of them as an Italian man. He thought that he recognised a second man but there is no evidence of that man's country of origin. Mr Alderton did not hear either of them speak. The effect of Professor McCarthy's evidence is that there were no escaped Italian or German POWs in the area of Bonegilla in 1944. On that basis, we are not satisfied on the balance of probabilities that any of the men in the car pool was of German origin. It follows that we are not satisfied that the group of trespassers was organised by, or under the leadership of, a German POW.
Even if the Italian man was a POW at the time of the attack, we are not satisfied that Mr Alderton "incurred danger from hostile forces of the enemy". Assuming for the moment that the unknown Italian man was a member of the Italian naval, military or air forces or was a person assisting any of those forces, those forces were not forces of the enemy. They were not forces of the enemy as, on the basis of the evidence of Professor McCarthy, we find that Italy was not a "State at war with the Crown during" the relevant period in World War 2. Consequently, on the balance of probabilities, Mr Alderton did not incur danger from hostile forces of the enemy.
As Mr Alderton must satisfy each of the criteria of "qualifying service" set out in s. 7A(1)(a)(i), we do not need to consider the remaining criteria. We find that he does not have qualifying service.
For the reasons we have given, we affirm the decision of a delegate of the respondent dated 10 September, 1998 and affirmed by the decision of another delegate dated 18 November, 1998.
I certify that the forty four preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President), Brigadier I R W Brumfield (Member) and Mr I R Way (Member)
Signed: ................................................. M Martinez Associate
Dates of Hearing 18 August, 2000
Date of Decision 4 December, 2000
Applicant In Person
Advocate for the Respondent Mr J Stoner
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